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Tuesday, October 25, 2011

I was interviewed recently for an article outlining tips on how to choose the right attorney to represent a community association. Specifically, the reporter wanted to know which qualities I thought might be crucial for a successful relationship.

Most of us have been taught how to pick the right piece of fruit or what to look for in a mate but picking the right attorney, accountant, engineer or other professional? I suspect that many of us choosing these professionals work off of referrals, word of mouth and gut instinct. All of those avenues may lead you to the perfect fit but I would suggest that the following are also some qualities/credentials that a board would want to seek in an attorney to assist their community:

● Knowledge in this area of the law. How many years has the attorney been working with community associations and what percentage of his or practice is devoted to the representation of community associations? 5%, 50%, 100%?

● Does the attorney or the firm for whom the attorney works represent any other clients that may have conflicts of interest that could impact the community? I have seen community associations dumped as clients when their law firm also represents a developer, bank or other entity with a competing interest since those entities are often seen as the source of more "lucrative" work.

● Has the attorney ever served on a community association board? It usually helps create a sense of understanding and empathy when an association attorney has actually sat in the shoes of a volunteer board member. Most of our KG&B attorneys and many of our staff members have sat on association boards which is very helpful in their daily interactions with our clients.

● Does the attorney have the ability to communicate clearly in writing and verbally? It doesn't matter if your attorney graduated from Harvard if no one can understand the advice he or she is rendering. Lengthy paragraphs in legal opinions that could have been written by James Joyce are one tip-off that you might have a problem. I have never seen a potential client do this, but I would suggest asking an attorney to give a writing sample; perhaps an opinion letter with sensitive information redacted. I do this when I interview job candidates and associations should do this to see if the attorney's communication style is a good fit for them.

● Does the attorney have common sense and experience to realize when they are "being played"? Experienced community association attorneys get a sense when one board member is seeking advice that was not sanctioned by the full board but is really a personal agenda item for that director. Similarly, experienced community association attorneys know not to take sides when there are intra-board disputes and remind the board that it is their duty to advise the entire board what can and can't be done within the confines of the statutes and the association's governing documents.

● Does the attorney have a history of disciplinary action with their State's Bar and, if so, for what reason and what was the disposition of those complaints?

● What do other associations have to say about this attorney or Firm's work? Are they on top of the changes to the law each year? What kind of programs and services do they provide to their community association clients?

● What is this attorney's track record in terms of litigation successes if you are seeking assistance on a potential litigation matter? Does the attorney and/or firm give a choice of billing options for litigation including deferred billing or contingency work if your association has limited resources to pursue its rights legally?

Monday, October 24, 2011

This past weekend, I received several calls from neighbors advising that an alligator had been spotted in the canals and lakes in my community and also received two email blasts from our board alerting us to the alligator's presence and urging that care be taken particularly with small dogs and children. The board also advised that a trapper had been contacted to relocate the animal elsewhere given its size.

It should really come as no surprise that alligators and a plethora of other wildlife appreciate our community as much as the two-legged inhabitants do. After all, this community was built in the late '70's in what was then almost the edge of the known universe in western Broward County. Our community prides itself on the abundance of wildlife just outside our doors; we even had an otter who loved to entertain with his antics in our canals at one point. However, despite the community's warm embrace of this "outdoorsy" lifestyle, what would happen should that alligator or any other of our wild inhabitants injure or kill a human or pet?

The Georgia Supreme Court is struggling with this very issue right now. Last week, Georgia's highest court agreed to take up a case that those of us living in community associations in Florida (and other associations around the country in areas replete with wildlife) would be well advised to monitor. In October, 2007, an 83-year old woman was house-sitting for her daughter and son-in-law in a coastal community known as The Landings. The woman was killed in a grisly alligator attack and was later found in one of the community's many lagoons. A trapper found and killed the 8-foot gator and evidence that it was responsible for the woman's death was obtained.

The family members then sued their homeowners' association claiming that it should have done a better job protecting the safety of residents and visitors in a community where alligators are common. The family won at the appellate level. One of the main issues to be raised before the Georgia Supreme Court is whether the legal doctrine known as "animals ferae naturae" should shield the association from liability in connection with death or injury that can naturally occur when humans and domesticated animals come into contact with wild animals. That doctrine would typically provide such a shield so long as the property owner had not reduced the wild animals to its possession or control or introduced a non-indigenous animal to the area. Since alligators are indigenous to coastal Georgia (and throughout our fair State as well) it is possible that the Georgia Supreme Court could absolve the association of liability in connection with the attack.

This case bears watching and associations that do have indigenous wildlife that is capable of injuring or killing humans and domesticated animals within their boundaries, should be discussing what can be done to minimize harm and maximize safety. In my community's example, residents received a series of alerts and the board called out a trapper to catch and relocate the animal. Boards that become aware of a dangerous animal's presence and do nothing may be setting the stage for catastrophic consequences.

Tuesday, October 18, 2011

I took my daughter and her friends recently to Halloween Horror Nights in Orlando. The weather was beautiful, the haunted houses were indeed fantastically spooky and other than a three-hour car ride listening to some truly awful music dictated by the younger occupants in the vehicle, the trip couldn't have been any nicer. If you have experienced Universal at Halloween, you were probably as amazed as we were at the staging that goes into this event. Abundant holiday-appropriate lighting, music and decorations set the tone.

When I returned home, I noticed that many of the houses in my own homeowners' association had already started putting out their decorations for Halloween including a pretty elaborate display down the street. This started me thinking about the various issues that crop up in common interest ownership communities when it comes to owners decorating their own properties as well as boards decorating the common areas.

So what are some of these issues?

Could an association pass a rule that flat out bans holiday decorations?

There is abundant caselaw in the state of Florida which provides that board rules and regulations must be reasonable in order to be enforceable. An owner could make an argument that a total holiday decorating ban impedes upon his or her freedom of speech and freedom of religion. While owners agree to abide by the governing documents and Rules and Regulations when purchasing in an association, and these are private communities we are discussing so the ability to tie a board decision to the "State Action" needed for a constitutional challenge is nebulous at best, those restrictions still must be reasonable. If nothing else, most association members enjoy some decorations at the various holidays and a total ban may not be a terribly popular decision.

What are the issues involved with the association putting up lights/decorations on the common areas?

A condominium association's decision to place holiday decorations upon the common areas could be challenged by some owners as a material alteration even though the display is only temporary in nature. Although the duration of the display is likely to be much shorter than the challenge, the possibility of a challenge does exist and someone may see fit to take up that fight to prevent similar alterations in the future. Another pertinent question is whether the costs of a community holiday display is a proper common expense?

This is another area that is definitely up for debate. In Florida, we have had associations that were challenged for spending association funds to provide refreshments at meetings, and the Division of Florida Condominiums took the position that if such expenses were not authorized in the Declaration, then they were not proper common expenses. While most people enjoy these displays, and would not be likely to challenge the expense if reasonable, boards must still realize that this is a possibility especially in the current economic environment when so many associations are struggling. Having fewer owners to foot the bill for a lavish lighting display in the community might be the proverbial straw that breaks the camel's back. The bottom line is that if such expenditures are not authorized in the Declaration, then they are vulnerable to a challenge as being improper.

Lastly, with any community holiday display, thought should be given to community diversity and the fact that many members of the association may celebrate a variety of holidays. It is for this reason that many communities choose to use holiday neutral light displays as opposed to erecting religious symbols associated with particular holidays.

How to get around these hurdles if your association wants to show its festive side for the holidays?

- Seek membership approval to amend your declaration to provide that holiday decorating is a proper common expense. If you want to increase the likelihood of getting such an amendment passed, put a percentage cap based on the total budget of what can be spent in this endeavor lest Joe Homeowner worry that the community overspends in this area. The goal is to keep the expense reasonable.

- Get the members involved in donating items to decorate the common areas. Word of caution: this can get sticky as folks often have different ideas about what is acceptable holiday decor.

- Set reasonable rules for owners to take down their decorations within a reasonable time after a holiday passes and ensure that the association does the same for any items it installs on the common areas. Most folks don't want to be looking at Fall Harvest displays in April. What is a reasonable time? It will vary depending on whom you ask but two weeks seems to be enough time to take your pumpkins and snowmen down.

- Set reasonable rules regarding a display's size and scope and ensure that both owners and the association comply with those rules when planning their holiday displays. The goal is to prevent any display from becoming a source of nuisance in the community due to excessive noise, lights and probably more significantly, traffic issues. In communities without a means of controlling visitor access, this can become a problem when homeowner displays are advertised to the general public. It would be reasonable to restrict any decorations that impede access on catwalks or HOA streets or otherwise create fire hazards.

Common sense, reasonableness and the definition of “excessive” seem to be the operative words/themes when creating a sound policy on personal and community holiday displays.

Monday, October 10, 2011

An attorney at my Firm shared the following success story with me last week. It highlighted what we have been discussing in this blog about collections today being a matter of strategy and expertise. If you are a fan of Sun Tzu's Art of War, the example below reflects that the opportunity to defeat an "enemy" is indeed provided by the enemy himself.

I wanted to share our latest victory against a mortgagee/bank with you. In our estoppel letter we demanded the full amount because there was no assignment from the original lender to the Plaintiff in the foreclosure sale. They paid the full amount but under protest. They then filed a Motion to Limit Liability pursuant to 718.116(1)(b) Fla. Stat. against the association and scheduled the Motion for hearing. I had several communications with their counsel who shared a case with me in which he was the appellate counsel and where he prevailed. I also had several communications with the bank’s in house counsel but I stood firm on our position.

I then investigated their case and found all the discrepancies and filed a 57.105 Motion against them listing all the problems. The bank's attorney cancelled their hearing and transferred the case to another law firm who then rescheduled their Motion. However, they asked to review the 57.105 Motion I filed. The result is, they advised me yesterday that they have withdrawn their Motion and cancelled the hearing.

Had we given in to them, the association would have been limited to receiving $3,051.33 for assessments and would have had to pay attorney's fees that would not have been covered by the bank’s payment. Instead, the association will receive $10,912.56 for assessments and the attorney's fees are covered.
A motion made pursuant to Florida Statute Section 57.105 is often referred to as a "frivolous claim motion". A court must find that a claim was frivolous and that the attorney was not acting in good faith in filing it. The 2nd DCA has already held that a bank filing a foreclosure action against a property for which it never received an assignment of the promissory note is not acting in good faith by filing that foreclosure.

Monday, October 3, 2011

Whether we realize it or not, everything we do within the confines of a community association framework boils down to negotiations. An owner wants a second parking space, the board wants the membership to approve a material alteration, the manager wants a good turnout for the annual meeting and the list goes on. Unfortunately most people are not terribly skilled at the art of negotiation.

According to Wharton Professor Stuart Diamond, "Effective negotiations are about perceptions and emotions, not about win-win and threats. It is about valuing others, even people who might hate you. And that is more effective than power which might make the opposing side resentful and retaliatory."

In his book, Getting More, Diamond advises that trading items of unequal value can be one of the best negotiating tools. In our everyday lives this can play out as "you do the wash on Monday and I'll do the shopping on Thursday." This too can have a counterpart in association-land. Perhaps you change the time of the board meeting to a day or hour that is more convenient to the owners in exchange for member cooperation on parking issues? The book outlines hundreds of case studies covering everything from women in certain Third World countries trying to avoid arranged marriages to CEO's trying to close billion-dollar deals. Attempting to get your community issues under control won't seem like such a stretch after reading some of these success stories.

What is the worst negotiating technique? Being a bully. In community associations there are various actors that can fill the bully role. It might be a director who is selectively enforcing the covenants against some owners and not others; it might be the resident who is harassing the association employees or the board; it might be the manager who is blocking an attempt to inspect the association records and it might be the association attorney who is protecting certain members of the board. What all of these folks lose sight of is the fact that successful negotiation will ease their problems much quicker than flexing their muscle ever will but that requires an attitude change.

In his book, Diamond relates the following joke:

A guy goes into a store and buys a lamp. He goes home, rubs the lamp and a genie comes out. The genie says, "I'll give you anything you want but your neighbor has to get twice as much." The guy says to himself, "I want a house-but my neighbor will get two houses! I want a million dollars-but my neighbor will get two million." Finally the guy gets an idea. "I know what I want," he says to the genie. "Put out one of my eyes."

Sadly this is how most people negotiate along the lines of "This will hurt you more than it hurts me." Unfortunately, it usually hurts everyone equally and in a community association where the actors all have to live with each other on a daily basis, the impact will be felt much more keenly.

A Naples couple, Jerry and Trish Cohen, have filed suit against their condominium association as a result of cellphone towers being installed on the roof above their penthouse unit. Mr. and Mrs. Cohen claim that these towers have disturbed their quiet enjoyment of their property both as a result of the noise they produce as well as the health risks they believe are associated with them.

Jerry Cohen claims that noise from the cell towers routinely awakened the couple usually between 2 and 4 am with vibrations shaking their ceiling. The Cohens bought the unit back in 1982 and finally abandoned it in 2007 after they claim the association took no steps to address their noise and health concerns.

Their complaint, which was filed in August in Collier Circuit Court, delves into the health risks that some scientists attribute to cellphone use. While scientists differ on the risks, the Cohens claim that the studies are based on average cell phone use and not living underneath large towers. While an association typically has the authority to enter into contracts such as the leasehold of roof space for cell tower use without membership approval, adding the towers and their related structures and equipment would have constituted a material alteration of the common elements requiring membership approval. Assuming that such membership approval was obtained, the Cohens were still the most impacted parties given their unit's proximity to the roof, the noise and any health risks.

Almost a decade ago, a cell tower was slated to go up across the street from my own community. After our residents did some research, reviewed the plans for the tower, the proximity to our homes and the equipment and barbed wire wall that would have accompanied the tower, we mobilized and forced the cell phone company to locate the tower close to a highway and not our homes. At that time, I couldn't imagine living across from a cell tower let alone under one.

This case raises the issue of whether the owners who are most impacted by an installation like this should have to consent in addition to the other approval required. Of course, that also raises the specter of one or two people blocking something that the entire community might feel is beneficial.

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This blog is intended for general informational purposes only and is not intended to offer legal advice in any form whatsoever. Blog readers are urged to consult their own legal counsel to obtain specific legal advice. The blog author reserves the right to answer or decline to answer any comments. Any answers given to blog comments do not constitute legal advice nor do they create an attorney-client relationship. Offensive or defamatory comments will be removed.